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2014 DIGILAW 482 (GUJ)

Premani Products v. Mukundbhai M. Yagnik

2014-04-07

JAYANT PATEL

body2014
Judgment Jayant Patel, J.—The present petition is directed against the judgment and award dated 21.06.2006 passed by the Labour Court in Reference (LCA) No. 972 of 1992 whereby the Labour Court had directed for reinstatement with 20% back-wages. 2. The short facts of the case appear to be that as per the petitioner, the respondent was appointed as Supervisor from 10.12.1968. He continued service and then he was promoted as Production In-charge. As per the petitioner, the respondent started business of manufacturing of the same product which was being sold by the petitioner on the name of his wife and nephew and there was an attempt on the part of the respondent to divert the business of the petitioner. The petitioner lost the confidence upon the respondent and thereafter on 27.05.1991, the service of the respondent was terminated. The dispute was raised by the respondent under the Industrial Disputes Act, 1947 (hereinafter referred to as “the I.D. Act”) and such dispute was thereafter referred to the Labour Court for adjudication being Reference (LCA) No. 972 of 1992. The Labour Court at the conclusion of the adjudication process passed the above referred judgment and award. Under the circumstances, the present petition before this Court. 3. I have heard Mr. Dipak Dave, learned counsel appearing for the petitioner and Mr. Yogi Gadhia for the respondent. 4. Learned counsel appearing for the petitioner contended that the respondent was working in managerial as well as supervisory capacity and his salary was exceeding Rs. 1,600/which was the limit at the relevant time under Section 2(s) of the I.D. Act and therefore, he could not be said as workman under the Act and consequently the protection would not be available to him under the Act and hence outside the jurisdiction of the Labour Court. It was submitted that even otherwise also the respondent was doing the business of manufacturing of a product which was being manufactured by the petitioner on the name of his wife and nephew and such had resulted into loss of confidence and therefore, his services were rightly terminated. The Labour Court has committed error in recording in the judgment that no evidence is led in spite of the fact that number of documents were produced showing the functioning of the petitioner in managerial capacity and supervisory capacity. The Labour Court has committed error in recording in the judgment that no evidence is led in spite of the fact that number of documents were produced showing the functioning of the petitioner in managerial capacity and supervisory capacity. It was therefore submitted that the award passed by the Labour Court be quashed and set aside. 5. Whereas Mr. Gadhia, learned counsel appearing for the respondent submitted that admittedly no inquiry whatsoever was held before termination and therefore the termination would be illegal as per the provisions of the Act. He submitted that the documents which are produced by the management were signed by the respondent because of the insistence of the petitioner since he was working in a small factory and could not resist the insistence of the employer. He submitted that as such the respondent was working neither in a managerial capacity nor in supervisory capacity but could be said as doing the activity which would fall within the meaning of Section 2(s) of the I.D. Act and the protection would be available and the Labour Court will have the jurisdiction. He submitted that if the Labour Court had the jurisdiction and when the termination was without holding any inquiry, the Labour Court has rightly directed for reinstatement with 20% back-wages and therefore, this Court may not interfere with the award passed by the Labour Court. 6. It is an admitted position that no inquiry was held before termination and therefore on the said aspects, I do not find that any discussion is required to be made. However, the point which goes to the root of the matter is whether the respondent could be said as workman within the meaning of Section 2(s) of the I.D. Act or not and if the answer is in negative, the Labour Court will not have any jurisdiction and consequently, the award would fall to ground for the relief under the Act. 7. As the termination is of the year May, 1991, reference may be required to be made to the provisions of the Act as prevailing then. 7. As the termination is of the year May, 1991, reference may be required to be made to the provisions of the Act as prevailing then. Section 2(s) of the I.D. Act at the relevant time was as under: “Section 2(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person— (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison, or (iii) who is employed mainly in a managerial or administrative capacity, or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” 8. The aforesaid shows that all persons who are engaged in any industries are covered but by exception it has been so provided with the one who is employed in supervisory capacity draws wages exceeding Rs. 1,600/per annum or exercises duty as per the power vested to him in managerial capacity would stand excluded. It is true that by now it is well settled that mere nomenclature of a designation of a person is not sufficient to deprive him the benefit of the protection available under the I.D. Act and the Court may be required to examine the functioning or the status of the person after considering the evidence led before it. The finding of the Labour Court in the award at Para10 is to the effect that no evidence is produced by the Company which in my view is an error apparent on the face of record inasmuch as number of documents were produced. The list of documents at Exh. The finding of the Labour Court in the award at Para10 is to the effect that no evidence is produced by the Company which in my view is an error apparent on the face of record inasmuch as number of documents were produced. The list of documents at Exh. 11 on behalf of the petitioner show the various type of functioning by the respondent workman when he was in service. As such it was required for the Labour Court to consider the evidence with the deposition of the respective witnesses and then to record its finding as to whether such evidence deserves to be relied upon or to be discarded but there is no finding whatsoever by the Labour Court after considering those documents. In order to see that even if those documents and the other evidence are considered, whether ultimate finding of the Labour Court for the respondent as the workman as per Section 2(s) of the Act can be maintained or not, I have considered various evidences which were produced before Labour Court and are produced with the compilation of the Special Civil Application. The documents produced by the list at Exh. 11 are in majority admitted by the respondent in his cross-examination at Exh. 8. He has admitted his signature in the documents at Mark 11/1 to 11/10 and 11/15 to 11/23. In his further cross-examination, the respondent has also stated that he has signed in the said documents because they were falling in his authority or duty. If the said admission of the respondent workman is considered with the documents at Exh. 11/1, 2 and 3, it is apparent that he had functioned in managerial as well as supervisory capacity. There are also other correspondence at Exh. 11/4 to 11/10 which may show that the respondent had worked in the supervisory capacity. If the aforesaid evidence is considered, the position of the respondent would fall under Clause (iv) of Section 2(s) so as to take him outside the scope of the definition of the workman. If one is not the workman within the meaning of provisions of Section 2(s) of the I.D. Act, the protection under the Act would neither be available to him nor a Labour Court will have the jurisdiction to extend the protection under the Act. 9. If one is not the workman within the meaning of provisions of Section 2(s) of the I.D. Act, the protection under the Act would neither be available to him nor a Labour Court will have the jurisdiction to extend the protection under the Act. 9. In view of the above, aspects as to whether the inquiry before termination was held or not, would be rendered inconsequential. 10. In view of the aforesaid observation and discussion, finding recorded by the Labour Court that the respondent was the workman, is by committing error apparent on the face of record and further the finding can also be said as perverse to the record of the case. Hence, the award passed by the Labour Court cannot be sustained and deserves to be quashed and set aside. 11. Under the circumstances, the impugned award passed by the Labour Court is quashed and set aside. 12. The petition is allowed to the aforesaid extent. Rule made absolute, accordingly. Considering the facts and circumstances, no order as to costs.